Entertaining code: File sharing, digital rights management regimes, and criminological theories of compliance

Abstract

This article outlines some of the main types of file-sharing systems and summarizes survey findings relating to file-sharing use. Three related theoretical models of compliance seeking through the use of technology are discussed, namely Lessig's (involving ‘code’ and ‘architecture’), Bottoms' (involving ‘constraint-based compliance’) and Clarke and others' work on ‘situational crime prevention’, and each is then applied to the specific topic of the illegal and legal distribution of music and films on the Internet. All these approaches recognize that, powerful though constraint-based technical measures are, legal/penal deterrents, social/cultural norms and economic incentives/disincentives all also have the potential to play central roles in obtaining compliance. Drawing from criminological work on social norms, it is suggested that the three key factors influencing the extent of normative compliance are (1) the degree to which users perceive specific digital rights management (DRM) regimes' restrictions as legitimate or as unnecessarily restrictive, (2) whether pricing policies in a given DRM regime are perceived as ‘fair’, and (3) beliefs as to what constitutes ‘acceptable’ computer usage in various different situational settings, such as at work, college or home. It is argued that the relative success of Apple's iTunes Music Store model is in part attributable to its successful exploitation of normative compliance mechanisms. The entertainment industry more generally must recognize the centrality of normative factors in patterns of compliance and non-compliance.

Notes

1 Fisher, p 1, 2004.

2 International Federation of the Phonographic Industry, Commercial Piracy Report 2003, International Federation of the Phonographic Industry, London, 2003.

3 Pew Internet & American Life Project, 13 Million Americans ‘Freeload’ Music on the Internet [Internet Tracking Report], Pew Internet & American Life Project, Washington, DC, 2000, report available online at http://www.pewinternet.org

4 Pew Internet & American Life Project, Downloading Free Music: Internet Music Lovers Don't Think it's Stealing, Pew Internet & American Life Project, Washington, DC, 2000, report available online at http://www.pewinternet.org

5 Pew Internet & American Life Project, Pew Internet Project Data Memo [Music Downloading, File-sharing and Copyright], Pew Internet & American Life Project, Washington, DC, 2003, report available online at http://www.pewinternet.org

6 Pew Internet & American Life Project, Pew Internet Project and comScore Media Metrix Data Memo, Pew Internet & American Life Project, Washington, DC, 2004, report available online at http://www.pewinternet.org

7 Ibid, p 2.

8 Ibid, p 3.

9 Pew Internet & American Life Project, Pew Internet Project Data Memo, Pew Internet & American Life Project, Washington, DC, 2005, report available online at http://www.pewinternet.org

10 Ibid, p 3.

11 Ibid, p 5

12 Ibid, p 7.

13 Ibid, p 9, emphasis in original.

14 L Lessig, Code and Other Laws of Cyberspace, Basic Books, New York, 1999.

15 Fisher, op cit.

16 See www.audiofeast.com, site visited March 2005.

17 See www.apple.com, site visited August 2005.

18 Lessig, op cit, p 88.

19 Lessig, op cit, see the diagram on p 93.

20 M Foucautt, ‘The subject and power’, in H Dreyfus and P Rainbow (eds) Michel Foucautt: Beyond Structuralism and Hermeneutics, Harvester Wheatsheaf, Hemel Hempstead, 1982.

21 A E Bottoms, ‘Interpersonal violence and social order in prisons’, in M Tonry and J Petersilia (eds), Crime and Justice: A Review of Research, Volume 26: Prisons, University of Chicago Press, London, 1999 and A E Bottoms, ‘Compliance and community penalties’, in A E Bottoms, L Gelsthorpe and S Rex (eds), Community Penalties: Change and Challenges, Willan, Cullompton, 2001.

22 The current dominant market prices for single-track legal music downloads in the USA and UK, respectively.

23 J Coleman, Foundations of Social Theory, Harvard University Press (The Belknap Press), London, 1990.

24 Cf. Lessig, op cit.

25 G Newman and R V Clarke, Superhighway Robbery: Preventing E-commerce Crime, Willan Publishing, Cullompton, 2003.

26 Wilkins, 1997.

27 Newman and Clarke, op cit, p 7.

28 Newman and Clarke, op cit, p 8.

29 Newman and Clarke, op cit, pp 9–10.

30 Newman and Clarke, op cit, p 19.

31 R V Clarke and R Homel, ‘A revised classification of situational crime prevention techniques’, in S P Lab (ed.), Crime Prevention at the Crossroads, Anderson, Cincinnati, OH, 1997.

32 Newman and Clarke, op cit, p 19.

33 D Cornish and R V Clarke, ‘Opportunities, precipitators and criminal decisions: a reply to Wortley's critique of situational crime prevention’, in M Smith and D Cornish (eds), Theory for Practice in Situational Crime Prevention, Willan Publishing, Cullompton, 2003.

34 The aim in large part, presumably, of Metro-Goldwyn-Mayer Studios in the Grokster case (Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd) presently being heard before the US Supreme Court.

35 A recent innovation on the part of recording companies, these files typically contain silence, white noise, the first 15 seconds or so of a track followed by silence, noise, the same 15 seconds repeated over or a severely quality-degraded file (such as a very low bit rate or monaural copy).

36 Such as Apple Computer's iTunes Music Store.

37 Newman and Clarke, op cit, p 98.

38 See Coleman, op cit.

39 R V Clarke, ‘Situational crime prevention’, in M Tonry and D Farrington (eds), Building a Safer Society: Crime and Justice: A Review of Research, Vol. 19, University of Chicago Press, Chicago, 1995.

40 Newman and Clarke, op cit, p 18, emphasis in original.

41 See also Newman and Clarke, op cit, Ch 4 generally.

42 Newman and Clarke, op cit, p 17.

43 Newman and Clarke, op cit, pp 61–62.

44 Newman and Clarke, op cit, p 12.

45 Cavallo and Drummond, 1994.

46 Newman and Clarke, op cit, p 12.

47 The principal wider social norm being followed here (in the UK at least) being the principle that owners of private or quasi-public spaces have a certain ‘right’ to choose whether to allow or disallow smoking in such spaces and that any prohibition should be respected. This also accounts for why ‘No smoking’ signs appear less effectual in what are perceived to be more ‘public’ places, the absence in practice of a ‘capable guardian’ norm enforcer being a reflection of this social norm rather than an alternative, simpler explanation.

48 Newman and Clarke, op cit, p 12.

49 Newman and Clarke, op cit, p 14.